Mr W & the Health Service Executive

Whether the HSE was justified in refusing access to certain information in the applicant's out-patient records, under sections 35 and 37 of the FOI Act

17 July 2018

Background

By letter dated 7 December 2017 the applicant requested his out-patient medical records from a named hospital for the period 2001 to the date of the request. The HSE part-granted the request on 12 January 2018, redacting certain information from some of the records released, under sections 35(1)(a) and 37(1) of the FOI Act. On 29 January 2018, the applicant sought an internal review of that decision. By letter dated 26 February 2018 he sought a review by this Office of the HSE's decision. In doing so, he made specific reference to notes relating to interactions with Hospital staff on 28 September 2001 which he believed should have been identified and released. Subsequently, on 13 March 2018 the HSE affirmed its original decision.

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review I have had regard to the correspondence between the applicant and the HSE as set out above and to the communications between this Office and both the HSE and the applicant on the matter.

Scope of Review

It is important to note that the applicant specifically sought access to his out-patient records. According to the HSE, the applicant has a separate in-patient file for his previous admissions to the Hospital and any notes for the time of his interactions with Hospital staff on 28 September 2001 would be held in his in-patient file. The HSE stated that it received a separate request from the applicant on 8 February 2018 for his in-patient file and that a decision was taken to refuse access to that file but requesting the applicant to nominate a healthcare professional with whom he could view the records and discuss their content. The applicant's request for his in-patient file and the decision taken on that request are not included in this review.

This review is concerned solely with the question of whether the HSE was justified in redacting certain information from the applicant's out-patient records under sections 35 and 37.

Analysis and Findings

Having considered the relevant redactions, I am satisfied that section 37 is of most relevance in this case. Section 37(1) provides for the mandatory refusal of a request where the FOI body considers that access to the records sought would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.

"Personal information" is defined at section 2 of the Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 also lists 14 non exhaustive examples of what must be considered to be personal information.

Having regard to that definition, I am satisfied that all of the redacted information is either personal information relating to individuals other than the applicant or joint personal information relating to the applicant that is inextricably linked to personal information relating to other individuals. I find that section 37(1) applies.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Furthermore, section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third party/parties concerned, I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying In Women v. the Information Commissioner [2011] IESC 26 (the Rotunda case). It is noted that a public interest (“a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.

The applicant has made a number of allegations connected to the subject matter of the records at issue and has stated that he requires access to information in the records in order to pursue personal claims. He has expressed what is, in essence, a private interest in release. In the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest. An applicant's private interest in certain records cannot be construed as a public interest based on the applicant's own motives for seeking access to the records.

Nevertheless, the Long Title to the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. The public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies.

On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes clear that the release of records under FOI must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension. Furthermore, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I must also have regard to the fact that the grant of access to a record under the Act is understood, effectively, to be equivalent to the record's release to the world at large.

Having carefully considered the matter, I do not consider that the public interest in the release of the records sought in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the persons to whom the information in question relates. I am satisfied, therefore, that section 37(5)(a) does not apply.

In summary, therefore, I find that the HSE was justified in redacting the relevant information from the records released under section 37(1). As such, I do not consider it necessary to consider the applicability of section 35(1) in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to redact certain information from the applicant's out-patient records under section 37(1).

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.